Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005078

First-tier Tribunal No: PA/57113/2023
LP/01626/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 March 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

N M S
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR HE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Gayle, of Elder Rahimi Solicitors.
For the Respondent: Mr Wain, Senior Home Office Presenting Officer.

Heard at Field House on 4 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and her husband are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and her husband. Failure to comply with this order could amount to a contempt of court.

INTRODUCTION
1. The Appellant, an Iraqi national, appeals against the Decision of First-tier Tribunal Judge O’Garro, promulgated on 22 August 2024 (“the Decision”), dismissing her appeal against the Respondent’s decision dated 11 September 2023 (“RFRL”), refusing her Protection claim. The Appellant’s husband is a dependent on the Appellant’s claim.
THE APPELLANT’S PROTECTION CLAIM
2. In summary, the Appellant (“A”) claims that she will be the subject of an “honour killing” by her paternal cousin (“C”), if she is returned to Iraq.
3. The Appellant claims that she was born and raised in Arbat and that when she was about 20 years old, she refused an invitation to marry C. The Appellant claims that C made it clear that he intended to marry A and that he did not want her to marry anyone else. The cousin tried to force A to marry him by physically beating her on numerous occasions. The Appellant cannot remember how many times she was beaten by C. The Appellant further claims that C also harassed A’s family and that her family wanted A to marry C just to stop the harassment.
4. The Appellant claims that in 2009 she married her husband (“H”) and that when they became aware that C had been informed of the marriage, they fled Arbat and went into hiding in Tuz Khurmatu for 9 years out of fear of C. The Appellant claims that they remained in Tuz Khurmatu until they fled Iraq in August 2018.
5. The Appellant claims that C is an influential member of the Patriotic Union of Kurdistan (“PUK”) and that just before they fled Iraq, they were told by A’s sister that C had found out where they were hiding. This left them with no choice other than to flee Iraq.
6. The Appellant claims that she fled Iraq with H in August 2018 with the help of an agent. The Appellant claims that they stayed in Turkey for a week and travelled through unknown countries, entering the United Kingdon by lorry on 16 March 2019. The Appellant then claimed asylum on 17 March 2019.
7. On 11 September 2023, the Respondent refused A’s protection claim. Whilst A’s identity, nationality and ethnicity were accepted, the Respondent rejected A’s claim on account of inconsistencies and a lack of detail.
FIRST-TIER TRIBUNAL DECISION DATED 22 AUGUST 2024
8. The Appellant appealed the RFRL to the FTT and the matter came before First-tier Tribunal Judge O’Garro on 9 August 2024. In a Decision dated 22 August 2024, A’s appeal was dismissed on all grounds
9. For the purposes of the grounds of appeal before the Upper Tribunal, Judge O’Garro made the following relevant findings:
10. At paragraph [14] of the Decision, the FTIJ identified the issues in dispute as:
• Whether Appellant’s account is credible.
• Whether the Appellant is at risk of persecution in Iraq.
• Whether the Appellant’s return to Iraq is feasible.
11. At [17] the FTIJ confirmed that she had heard oral evidence from A and H and that both witnesses were cross examined.
12. At [36] – [44] the FTIJ considered the credibility of A’s narrative, summarising the issues at [36] as, A’s refusal to marry C, C’s alleged assaults upon A, C’s harassment of A’s family and C’s alleged membership of the Peshmerga.
13. In this regard, the FTIJ at [37] finds that she would have expected C, through his fellow Peshmerga, to “keep a close eye on the appellant to make sure that she did not marry someone else”. The FTIJ finds it incredible that A was able to meet and marry H without C finding out and that A had provided no explanation why this was the case.
14. At [38] the FTIJ notes A’s explanation, as contained in her WS at [21], for the risk in Iraq; in that C would be able to use his influence in the PUK to find A and H. However, the FTIJ reasons that because C was unable to find out about A’s relationship with H, A’s explanation damaged her credibility. At [39] the FTIJ then reasons that on A’s evidence, if C knew about the marriage, he would have used his influence to harm A before she escaped.
15. At [40] the FTIJ notes the background evidence demonstrating high levels of violence against women. In the light of this evidence, at [41] the FTIJ finds that it is not credible that A would have married H, “knowing this could be the catalyst for her cousin to want to kill her to protect his honour.” In this regard, the FTIJ reminded herself of A’s failure to explain how she was able to form a relationship with H without C knowing.
16. At [43] the FTIJ finds that A’s mental health problems were not caused by the alleged fear. This was because A had had no communication with C since 2009 and the expert had found that the “the root cause of the appellant’s distress is the uncertainties surrounding her health, her living conditions and her immigration status”.
17. At [44] the FTIJ finds “nothing in this appellant’s personal circumstances which gives me any reason to believe her claim”.
18. At paragraph [45] the FTIJ invokes SMO & KSP [2022] UKUT 00110 and considers whether A can “safely return to Iraq now”. At [48] the FTIJ re-affirms her rejection of A’s credibility and finds that, A and H have CSID cards in Iraq, they can arrange for the CSID cards to be sent to the UK, and therefore A and H can return to their family in Iraq.
19. At [50] – [51] the FTIJ finds that A’s appeal fails on Refugee Convention grounds and under Articles 2 and 3 ECHR. The FTIJ further rejects A’s Article 8 claim at [52] – [57].
PERMISSION TO APPEAL TO THE UPPER TRIBUNAL
20. On 4 September 2024, in grounds of appeal settled by Elder Rahimi Solicitors, the Appellant applied to the FTT for permission to appeal the Decision, and on 1 November 2024 FTIJ Pickering granted permission on grounds 2 – 4 only.
21. In granting permission to appeal, Judge Pickering found in relation to ground 2 that, “it is apparent that the appellant’s husband/partner gave evidence [§17-18] but it is unclear what view the Judge took of that evidence which went to the core of the appellant’s claim. This materially impacts upon grounds 3 - 4.”
GROUNDS OF APPEAL
22. In summary, the three pleaded grounds of appeal that were granted permission are:
ii. The FTIJ failed to consider the evidence of H, which corroborated A’s account.

iii. The FTIJ made material errors in her analysis of A’s evidence:
a. At [37] – [38] the FTIJ found it not credible that A could meet and marry H if C was powerful and influential as claimed.
• It is more than reasonably likely that despite C’s power and influence he was unable to keep A under surveillance.
b. At [39] the FTIJ found it incredible that A and H could escape before C could do them any harm.
• However, it was A and H’s consistent evidence that they fled as soon as they were informed that C knew of their whereabouts.
c. At [41] the FTIJ draws an adverse inference from A marrying H, given the risk of honour killing by C.
• However, the FTIJ failed to reconcile the fact that honour crimes do occur on account of individuals entering into risky relationships.

iv. The FTIJ erred in her assessment of the feasibility of return:
a. At [48] the FTIJ finds A’s account incredible but for the above reasons that analysis is flawed.
b. It is not disputed that A and H have no identity documents in the UK. The Appellant has consistently claimed that because the family are aware that their lives are in danger, the family would not assist with redocumentation.
23. There was no rule 24 reply from the Respondent.
24. The matter now comes before us to determine whether there is an error of law in the Decision of Judge O’Garro pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If we find an error, we must then determine whether the error is material, such that the Decision should be set aside. If the decision is set aside, we must decide whether to remake the decision in the Upper Tribunal or remit the appeal to the First-tier Tribunal, pursuant to s.12(2) of the 2007 Act.
25. We had before us a stitched bundle comprising of 514 pages, which the representatives confirmed that they had read.
ERROR OF LAW HEARING SUBMISSIONS
26. At the outset of the hearing the representatives confirmed that they had discussed the grounds of appeal and that Mr Wain for the Respondent, was prepared to concede that ground 2 disclosed a material error of law.
27. In this regard, Mr Wain accepted that, notwithstanding the brevity of H’s WS, the FTIJ did not engage with the H’s evidence at all, and that H’s evidence went to material issues in dispute.
28. Mr Wain further accepted that in the light of the error in ground 2, the entire credibility assessment was flawed.
DISCUSSION AND CONCLUSIONS
29. We are grateful to Mr Wain for this concession, which we consider appropriately made. As we explained at the hearing it is self-evident that the FTIJ makes no mention of, and gives no reasons for, rejecting H’s evidence. It is clear to us, that in addition to H’s WS, H also gave oral evidence and was cross examined at [17], however there is also no mention of, or engagement with, H’s oral evidence.
30. Whilst H’s WS is brief, it does corroborate A’s core account, including:
• The truth of the A’s account.
• That it was inevitable that C would kill A on account of the dishonour she has caused him by marrying H.
• That C had power and influence.
• That A and H stayed in hiding for 9 years until their location was discovered.
• That A had been traumatised by these events and was taking medication for her mental health.
31. In this regard, we bear in mind the guidance in QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC) at headnote (3), which states,
“The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.”
32. In the light of this guidance, we find that the FTIJ erred. The relevance of H’s WS is its first-hand corroboration of the claimed risk from C and the requirement that A and H go into hiding to avoid that risk.
33. It is wholly unclear to us what H’s oral evidence consisted of.
34. We find that H’s WS corroborated the principle factual issues in dispute. It is abundantly clear to us that the FTIJ’s conclusions were contrary to the thrust of H’s evidence, however the FTIJ gives no reasons at all as to why H’s evidence did not bring about a different outcome. We therefore find the error material.
35. In the light of the requirement to consider credibility holistically, we agree with Mr Wain’s concession that the entire credibility assessment is fatally infected by the error identified in ground 2. We therefore do not need to consider grounds 3 and 4, as the issues raised therein are directly informed by the FTIJ’s failure to consider H’s evidence.
36. Given the scope of the fact-finding exercise required to remake the FTT Decision, as discussed with the representatives at the error of law hearing, we consider it appropriate to remit A’s appeal to the First-tier Tribunal to be heard de novo, with no findings of fact preserved.
Notice of Decision
1. The Decision of the First-tier Tribunal dated 22 August 2024 involved the making of an error of law.
2. We set aside the Decision with no findings of fact preserved.
3. We remit the appeal to the First-tier Tribunal to be heard by any judge other than First-tier Tribunal Judge O’Garro.

D. Clarke
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 March 2025